NDPS Act | When Samples Aren't Drawn Following S.52A, FSL Report Is A Waste Paper & Can't Be Read In Evidence : Supreme Court

The Supreme Court on Friday (March 1) held that the accused cannot be held guilty of possessing narcotics and psychotropic substances if the mandate of Section 52A of the NDPS Act isn't fulfilled by the police while sending the collected sample for the Forensic Science Laboratory (FSL) Test.

Reversing the findings of the High Court which held the accused guilty under Section 20(b)(ii)(c) of NDPS Act (Punishment for possessing 'ganja' in commercial quantity), the Bench Comprising Justices B.R. Gavai and Sandeep Mehta observed that if the document pertaining to deposit of the samples at the Police Station and the transmission thereof to the FSL were not exhibited on record by the seizure officer, then the FSL report cannot be read in evidence because the required link evidence is missing.

“Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Exhibit P-11) is nothing but a waste paper and cannot be read in evidence.”, the Judgment authored by Sandeep Mehta J. noted.

The Supreme Court stated that while sending the sample for the FSL Test, the collected sample should fulfil the mandate of Section 52A of the NDPS Act i.e., the Court should be satisfied regarding the safekeeping of the samples right from the time of the seizure till the same reached the FSL.

In the instant case, due to glaring inconsistencies in the statements made by the prosecution witnesses, improper packaging of the collected sample, and non-disclosure of seals and signature of the accused on samples resulted in the acquittal of the appellants/accused by the Supreme Court.

The Supreme Court noted that the seizure officer faulted in weighing the ganja by assuming that the entire bundle contained ganja without segregating the chillies from the bundle.

“Seizure Officer(Inspector PW-1) made no effort whatsoever to conduct a separate weighing of the contraband by segregating the chilies. Rather, the panchnama is silent about the presence of chilies with the bundles of ganja. Thus, it cannot be said with any degree of certainty that the recovered ganja actually weighed 80 kgs.”

The Supreme Court noted that the version deposed by the seizure officer is full of contradictions, as firstly he claims that he collected three samples of ganja on the spot and handed over one sample to the accused.

“If this was true, apparently only two sample packets remained for being sent to the FSL. When PW-5 appeared for deposition, he produced the muddamal ganja in the Court and it was seen that the same was packed in seven new bags as against the three bags referred to in the seizure memo (Exhibit P-3).”, the court records.

“Neither any proceedings were conducted nor any memo was prepared by the police officers for repacking the seized ganja bundles in new packaging.”, the court added.

Non-Examination of Panch Witnesses Might Be Fatal To The Prosecution's Case

In the present case, the prosecution didn't examine the independent panch witnesses who were associated with the recovery proceedings of contraband, and neither an explanation was given by the prosecution as to why they were not being examined.

“In addition thereto, the prosecution neither examined any witness nor produced any document to satisfy the Court regarding safe keeping of the samples right from the time of the seizure till the same reached the FSL. The official who collected the samples from the police station and carried the same to the FSL was not examined at the trial.”, the court added.

Glaring loopholes

The Supreme Court found that no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate.

Further, it also came to be found that the Malkhana register was not produced in the Court. The FSL report does not disclose the panch chits and seals and signature of the accused on samples. The property deposited in the Court (muddamal) did not have any official seals. The witness also admitted that he did not take any permission from the Court to change the original three packets of muddamal ganja to seven new bags for safekeeping.

“These glaring loopholes in the prosecution case give rise to an inescapable inference that the prosecution has miserably failed to prove the required link evidence to satisfy the Court regarding the safe custody of the sample packets from the time of the seizure till the same reached the FSL”, the Supreme Court observes after perusing the entire evidence available on record.

Conclusion

“As a consequence of the above discussion, we are of the firm opinion that the prosecution has miserably failed to prove the charges against the accused. The evidence of the police witnesses is full of contradictions and is thoroughly unconvincing. The conviction of the accused appellants as recorded by the trial Court 18 and affirmed by the High Court is illegal on the face of record and suffers from highest degree of perversity.”, the Supreme Court concludes.

The appellants are acquitted of all the charges under Section 8(c) read with 20(b)(ii)(c) of the NDPS Act while setting aside the judgments of the High Court and Trial Court.

Counsels For Appellant(s) Mr. C. Nageswara Rao,Sr.Adv. Mr. Vikram Hegde, AOR Mr. Chitwan Sharma,Adv. Ms. Chinmayi Shrivastava,Adv. Mr. Shreeyash Uday Lalit,Adv. Mr. Tushar Singh,Adv. Mr. Praseena Elizabeth Joseph, AOR

Counsels For Respondent(s) Mr. Kumar Vaibhaw,Adv. Ms. Devina Sehgal, AOR Mr. Mohd. Ashaab,Adv.

Case Details: MOHAMMED KHALID AND ANOTHER VERSUS THE STATE OF TELANGANA, CRIMINAL APPEAL NO. 1610 OF 2023

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